United States of America v. James Randolph Sherman

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JAMES RANDOLPH SHERMAN,
Defendant-Appellant.
No. 21-10167
D.C. Nos.
2:13-cr-00302-MCE-1
2:13-cr-00302-MCE
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted November 18, 2022
San Francisco, California
Before: TASHIMA and PAEZ, Circuit Judges, and SESSIONS,** District Judge.
James Sherman (“Sherman”) appeals his jury conviction for conspiracy to
distribute and to possess with intent to distribute heroin and crack cocaine; two
counts of distribution of heroin; two counts of distribution of crack cocaine; and
possession of crack cocaine with intent to distribute in violation of 21 U.S.C.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
FILED
DEC 15 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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§§ 841(a)(1), 846. At trial, the government presented evidence showing that
Sherman supplied heroin and crack cocaine to a co-conspirator (“the dealer”) who
then sold those drugs to a confidential government source on four occasions
between March 2012 and July 2013.
On appeal, Sherman argues that: (1) the evidence at trial tended to show
multiple conspiracies between himself and the dealer rather than the single,
overarching conspiracy with which he was charged; and (2) the evidence was
insufficient to support his convictions for conspiracy and the counts related to
heroin and crack cocaine. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. Single Versus Multiple Conspiracies. Because Sherman did not move
for judgment of acquittal as to his conspiracy conviction, see Fed. R. Crim. Pro.
29, we review his challenge to this count for plain error. United States v. King,
735 F.3d 1098, 1106 (9th Cir. 2013). “Under plain-error review, reversal is
permitted only when there is (1) error that is (2) plain, (3) affects substantial rights,
and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” United States v. Flyer, 633 F.3d 911, 917 (9th Cir. 2011) (citations
omitted). “We invoke plain error in our discretion to prevent a miscarriage of
justice or to preserve the integrity and the reputation of the judicial process.”
United States v. Garcia-Guizar, 160 F.3d 511, 516 (9th Cir. 1998).

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Factors that distinguish a single conspiracy from multiple conspiracies are
“the nature of the scheme; the identity of the participants; the quality, frequency,
and duration of each conspirator’s transactions; and the commonality of time and
goals.” United States v. Duran, 189 F.3d 1071, 1080 (9th Cir. 1999) (citing United
States v. Bibbero, 749 F.2d 581, 587 (9th Cir. 1984)). “A single conspiracy may
involve several subagreements or subgroups of conspirators.” United States v.
Hopper, 177 F.3d 824 (1999) (citing Bibbero, 749 F.2d at 587).
The jury did not plainly err in convicting Sherman of a single overall
conspiracy with the dealer between March 14, 2012 and July 15, 2013. At trial, the
government established a pattern of communication and meetings between these
same two “key participants” that the jury could reasonably have found amounted to
a “method of operation [that] remained constant” across the multiple drug deals.
Duran, 189 F.3d at 1080. Because the jury could have rationally found that the
evidence in the record regarding the relevant timeframe was consistent with an
overarching, ongoing agreement to supply and deal drugs, the conviction for a
single conspiracy is not plainly erroneous.
2. Sufficiency of Evidence. Sherman also challenges the sufficiency of
evidence for his convictions for conspiracy and for the offenses related to heroin
and crack cocaine. At trial, Sherman moved for Rule 29 judgment of acquittal
only as to count six for possession with intent to distribute crack cocaine. We

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therefore review the conviction for count six under the Jackson v. Virginia
standard to decide whether, “after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” 443 U.S. 307, 319 (1979). We review
the remaining convictions for plain error. See King, 735 F.3d at 1106; see also
Flyer, 633 F.3d at 917 (explaining that, when reviewing an insufficiency claim, “it
is difficult to conceive of a different result occurring from the application of plain-
error review and the application of the standard test for insufficiency of the
evidence”).
No formal agreement is required for a conspiracy; an agreement may be
inferred from the participants’ acts pursuant to the scheme or other circumstantial
evidence. Hopper, 177 F.3d at 829. Evidence is sufficient to connect a defendant
to a conspiracy if it shows that the defendant had knowledge of and participated in
the conspiracy. See United States v. Vizcarra-Martinez, 66 F.3d 1006, 1010 (9th
Cir. 1995). “This court has long held that [a] defendant’s knowledge of and
participation in a conspiracy may be inferred from circumstantial evidence and
from evidence of the defendant’s actions.” Garcia-Guizar, 160 F.3d at 517–18
(internal quotations omitted).
The government proffered corroborative circumstantial evidence of the
conspiracy from the time of each drug deal. The evidence was sufficient for a jury

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to reasonably convict Sherman of conspiracy; therefore, the conviction withstands
plain-error review.
A defendant who participates in a conspiracy “may be subject to liability for
offenses committed as part of that conspiracy, even if the defendant did not
directly participate in each offense.” United States v. Grasso, 724 F.3d 1077, 1089
(9th Cir. 2013) (describing liability under Pinkerton v. United States, 328 U.S. 640,
647 (1946)). Pinkerton “renders all co-conspirators criminally liable for
reasonably foreseeable overt acts committed by others in furtherance of the
conspiracy they have joined, whether they were aware of them or not.” United
States v. Hernandez-Orellana, 539 F.3d 994, 1007 (9th Cir. 2008). Distribution of
heroin and crack cocaine and possession with intent to distribute crack cocaine are
all foreseeable felonies in a conspiracy to distribute and possess with intent to
distribute those drugs. Because the government sufficiently proved a conspiracy
between Sherman and the dealer, the jury did not plainly err in finding Sherman
guilty of these “reasonably foreseeable” substantive felonies resulting from that
conspiracy. Id.
AFFIRMED.

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